No Complaint Was Inadmissible. 23G / 2016 Regarding The Exception Of Unconstitutionality Of Article 329 Para. (1) Of The Criminal Procedure Code Of The Republic Of Moldova (Contesting Preventive Measure)

Original Language Title: de inadmisibilitate a sesizării nr. 23g/2016 privind excepția de neconstituționalitate a articolului 329 alin.(1) din Codul de procedură penală al Republicii Moldova (contestarea măsurii preventive)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=364109

No complaint was inadmissible. 23g /
2016 on the plea of ​​unconstitutionality of Article 329 para. (1) of the
Criminal Procedure of the Republic of Moldova
(Challenging the preventive measure)


Posted: 08/04/2016
in the Official Gazette

Nr. 90-99
Article No. 28
Effective Date: 23/03/2016

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor
Panţiru,
Mr. Victor POPA, judges | || with Ms Ludmila Chihai, Registrar,
Considering the complaint filed on 18 March 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials,
deliberated on 23 March 2016 in the council chamber,
Delivers the following decision: tHE FACTS

1. The case originated in the objection of unconstitutionality of Article 329 para. (1) of the Criminal Procedure Code, Igor Popa raised by lawyers in the criminal case and Cristina Bancu nr.1-721 / 2016 before the Court Buiucani mun. Chişinău.
2. The referral was submitted to the Constitutional Court on 18 March 2016 by the panel (Galina Moscalciuc, Sergiu Lazari and Andrei Niculcea), pursuant to Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
A.
Three main circumstances in the proceedings. Pending court Buiucani mun. Chişinău the criminal case no. 1-721 / 2016, brought on 13 October 2015 regarding deputy Vladimir Filat, the Attorney General, under suspicion concerning offenses under Articles 324 para. (3) a) and lit. b) and 326 para. (3) a) of the Criminal Code.
4. On 15 October 2015 the defendant was arrested by the Anti-Corruption Prosecutor's Office and by the conclusion of Buiucani court was imposed preventive detention, which was successively extended.
May. 1 March 2016, the prosecutor's case to the District Court ordered the remand extension of the deadline by 30 days.
June. On 2 March 2016 a group of deputies of the Parliament of Moldova submitted a request for replacement of pre-trial detention with a non-custodial measure, under their personal guarantee.
July. The same day, the court, under Article 329 para. (1) of the Criminal Procedure Code, group members examined the request and dismissed it as unfounded.
August. On 16 March 2016, the defendant's lawyers raised the objection of unconstitutionality of Article 329 para. (1) of the Criminal Procedure Code on the basis that it does not allow any doubts as preventive measure before the expiration of 30 days from the entry into force of the conclusion of the pre-trial detention.
September. By the end of the same day, the court ordered the lifting of the objection of unconstitutionality and transmission of referral to the Constitutional Court for resolution.
B. 10
relevant legislation. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 4Drepturile and freedoms


"(1) Constitutional provisions on the rights and freedoms are interpreted and applied in accordance with the Universal Declaration of Human Rights, with the covenants and other treaties to which Moldova is party.
(2) Where any inconsistencies exist between the covenants and treaties on fundamental human rights to which Moldova is a party and its domestic laws, international regulations have priority. "

Article 7 Constitution as the Supreme Law

"The Constitution is the supreme law. No law or other legal act that contravenes the Constitution has no legal power. "

Article 8Respectarea international law and international treaties

"(1) The Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is party, to its relations with other states the unanimously recognized principles and norms of international law.
(2) The entry into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision. "

Article 20 Access to justice


"(1) Everyone has the right to obtain effective protection from competent courts against acts that violate the rights, freedoms and interests.
(2) No law may restrict access to justice. "

Article 25Libertatea individual and personal security

"(1) Individual freedom and security of person are inviolable.
[...]
(6) Release detained or arrested person is obligatory if the reasons for detention or arrest have disappeared. "
11. The relevant provisions of the Criminal Procedure Code no. 122-XV of 14 March 2003 (republished in the Official Gazette, 2012 nr.263-269, art.855) are:

Article 329Rezolvarea issue of the preventive measure

"(1) In the proceedings, the court of its own motion or at the request of the parties and heard their opinions have the right to apply, or revoke the preventive measure applied to the accused. A new request to apply, replace or revoke the preventive measure may be filed when there are grounds for it, but no earlier than one month after the previous decision on this issue took effect or they have not intervened in November circumstances determining new request.
[...]. "
12. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova no. 1298-XIII of 24 July 1997) are: || |
Article 5Dreptul to liberty and security

"1. Everyone has the right to liberty and security. No one shall be deprived of his liberty save in the following cases and in legal ways:
a) the lawful detention on conviction by a competent court;
B) if she was arrested or lawfully detained for disobedience to a judgment according to law, by a court or in order to secure the fulfillment of any obligation prescribed by law;
C) the lawful arrest or detention with a view to bringing him before the competent legal authority when there is probable cause to believe that an offense committed or there are reasonable grounds to believe in the need to prevent him from committing a offense or fleeing after having done so;
D) whether it is lawful detention of a minor, committed to educational supervision or his lawful detention for the purpose of bringing him before the competent authority;
E) if the lawful detention of a person liable to transmit infectious diseases, of persons of unsound mind, alcoholics, drug addict or a vagrant;
F) whether it is lawful arrest or detention of a person to prevent illegally entering the territory or against whom action is being taken with a view to deportation or extradition.
2. Any person arrested shall be informed, promptly and in a language which he understands, of the reasons for his arrest and of any charge against him.
March. Everyone arrested or detained in accordance with the provisions of paragraph 1 letter c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for the trial.
4. Any person deprived of his liberty by arrest or detention shall be entitled to bring an appeal before a court for it to rule in the short term on the lawfulness of his detention and release ordered if the detention is not lawful.
[...]. "

Article 6Dreptul to a fair trial


"1. Everyone has the right to a fair trial, publicly and within a reasonable period of his case by an independent and impartial tribunal established by law and the determination of rights and obligations of civil nature or on the merits of any criminal charge against him. Judgment shall be pronounced publicly but the meeting room may be forbidden for the press and the public throughout the process or a part thereof in the interests of morality, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties so require, or to the extent strictly required by the court when, in special circumstances where publicity would prejudice the interests of justice.
[...]. "
THE LAW A. The authors of the objection of unconstitutionality
13. In motivating the exception of unconstitutionality, Igor Popa and Cristina Bancu lawyers argue that the contested provision does not allow examining habeas corpus application before the expiration of 30 days after the previous decision on the issue came into force.
14. Thus, in their view, the contested provision unduly limits the right of the parties to request the court to consider habeas corpus applications.
15. According to the authors plea, the contested provisions violate Article 4 para. (1) and (2), 7, 8 para. (1), paragraph 20. (1) and (2), paragraph 25. (6) of the Constitution and Article 5 para. (3) and (4) and 6 para. (1) of the European Convention.
B. The Court's assessment
16. Examining the admissibility of the notification regarding the exception of unconstitutionality, the Court finds as follows.
17. Under Article 135 para. (1) a) of the Constitution, the constitutionality of laws, namely the Code of Criminal Procedure, the competence of the Constitutional Court.
18. The Court finds that the notification regarding the exception of unconstitutionality, being raised by lawyers and Igor Popa Cristina Bancu in the criminal case nr.1-721 / 2016 which is pending in Court Buiucani mun. Chişinău, is made the subject of legally authorized, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016
19. The Court reiterates that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) letter g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the rule and its relevance the contested provisions for resolution of the dispute in the courts.
20. Asks the Court holds that authors declare unconstitutional only exception phrase "but not earlier than one month after the previous decision on the issue came into force 'in Article 329 para. (1) of the Criminal Procedure Code.
21. The Court notes that Article 329 para. (1) of the Criminal Procedure Code sets out the conditions under which an application may be filed habeas corpus:
"(1) In the proceedings, the court of its own motion or at the request of the parties and heard their opinions have the right to issue penalties , replace or revoke the preventive measure applied to the accused. A new request to apply, replace or revoke the preventive measure may be filed when there are grounds for it, but no earlier than one month after the previous decision on this issue took effect or they have not intervened in November circumstances determining new demand. "
22. From the content of the provisions of Article 329 para. (1) of the Criminal Procedure Code, read in full, the Court holds that the law allows filing habeas corpus whenever new circumstances.
23. The possibility of contesting the preventive measure and habeas corpus application before the deadline in the event of new circumstances, under Article 329 para. (1) of the Criminal Procedure Code is found and the European Court judgment in Sarban v. Moldova:

"122. Court attaches special importance to the fact that the applicant has based its request habeas corpus in such circumstances, as well as poor state of his health and lack of medical care in the remand center, circumstances which the Court has found to be true ( see paragraphs 78-91 above). He also referred to a new and relevant fact, namely former investigator GG statements (see paragraph 18 above). These two elements have expedited examination of the application and had to be taken into account by national courts. This was also the first opportunity for the court examining the case to rule on the request habeas corpus, after she received the entire file from prosecution and could not form an opinion more informed than before so on the legality of the detention and any alleged danger which might have occurred as a result of the applicant's release during trial. However, the court waited three weeks before using this opportunity. "
24. The Court observes that the grounds for the objection of unconstitutionality, the authors of the objection, on the one hand, I recognize that in examining the application of habeas corpus court applied the provisions of Article 329 of the Criminal Procedure Code, on the other hand, invoked the unconstitutionality of the same provisions on the ground that it would not allow the examination of the application for habeas corpus before the expiry of 30 days.
25. The Court notes that in this case, the judge considered the application for habeas corpus fund, raised by lawyers to replace the preventive measure of arrest with one non-custodial under "personal guarantee". Judge fund by end of March 2, 2016, decided that "the reasons which led to the application of that preventive measures and subsequent extension they maintain timeliness [...]" and therefore "can not serve as a basis for accept the application on the replacement of the preventive measure ". Background judge also held that since the time of application habeas corpus "did not intervene other new circumstances, the court has not established any grounds that would justify the grant of guarantors".
26. Applying the above findings to the present case, the Court notes that, unlike Sarban, the court considered the application of habeas corpus in one day, which was rejected not because of time, but because the judge substantive reached finding of non new circumstances.
27. In this context, the Court holds that the habeas corpus request filed by lawyers Igor Popa and Cristina Bancu was examined expeditiously maximum distance for a single day since the adoption of the conclusion of the pre-trial detention (within the period of 30 days disputed by authors exception).
28. Therefore, the Court finds that the legal provisions expressly provide for the possibility of submitting an application for habeas corpus before the expiration of 30 days for incidents grounds of new circumstances that led to the arrest. Given that demand habeas corpus case was examined just one day after the entry into force of the conclusion of the pre-trial detention, so without waiting for the expiry of 30 days, challenged the authors of the objection, it is clear that the practice judicial no different in this respect the text of the law.
29. Therefore, without checking the validity of the reason invoked by the judge of fact, the Court concludes that the facts of the case reveal the nature of the abuse of the objection of unconstitutionality raised by lawyers Igor Popa and Cristina Bancu, which consists of distortion intentional meaning of the words challenged by removing in the context of its legal requirement. Such an approach is manifestly contrary to the art of reading and interpretation of the law.
30. Thus, it is obvious that the law offers the possibility to file habeas corpus application before the expiration of 30 days.
31. It is also evident that the authors of the objection made use of this right and the judge considered the request of attorneys background. In the circumstances, it is obvious that there is a mechanism to verify the grounds for keeping in custody before the expiry of 30 days. Background that the judge considered unfounded lawyers habeas corpus approach is a matter of opportunity rather than constitutional.

32. Moreover, in the circumstances of this case it follows unequivocally that lawyers have appealed the decision of the application by March 1, 2016 a preventive measure, therefore, accepted the substantive arguments for pre-trial judge.
33. The Court notes that the procedure for lifting the exception of unconstitutionality has jurisdiction under Article 135 of the Constitution, to report a legal rule to a constitutional norm. Court legal norm incident report in a particular case to the Basic Law, taking into account the practical application of this rule. This control includes checking but no substantive arguments to judges handling a case. A contrary interpretation would mean the assumption of the Constitutional Court of an improper role, namely verification of judicial decisions on the merits.
34. The Court notes that in this case, the judge applied the provisions challenged background, therefore, the plea is devoid of purpose and therefore to be rejected as manifestly unfounded.
For these reasons, pursuant to Article 26 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional and pt. 28 lit. d) of Regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court

DECIDED:

1. Declares inadmissible the complaint regarding the exception of unconstitutionality of provisions of Article 329 para. (1) of the Criminal Procedure Code, Igor Popa raised by lawyers in the criminal case and Cristina Bancu nr.1-721 / 2016 before the Court Buiucani mun. Chişinău.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase